Marsico v. Brennan

• Decision Date: 24 October 1994
• Citation: 618 N.Y.S.2d 487,162 Misc.2d 666
• Court: New York Supreme Court
• Parties: Stephan MARSICO, Plaintiff, v. Delia BRENNAN, Kenneth Brennan, Deer Head Realty Co., Inc. and Deer Head Realty Co., Inc., d/b/a Deer Head Inn & Restaurant, Defendants.

Page 487

618 N.Y.S.2d 487

162 Misc.2d 666

Stephan MARSICO, Plaintiff, v. Delia BRENNAN, Kenneth Brennan, Deer Head Realty Co., Inc. and Deer Head Realty Co., Inc., d/b/a Deer Head

Inn & Restaurant, Defendants.

Supreme Court, Rockland County.

Oct. 24, 1994.

Weiner, Aliano & Catlett, Nanuet, for plaintiff.

Mac Cartney, Mac Cartney, Kerrigan & Mac Cartney, Nyack, for Brennan and another, defendants.

GEORGE M. BERGERMAN, Justice.

Defendants moved at the close of plaintiff's case to dismiss this action upon the ground that plaintiff failed to establish that defendants owed a duty of care to plaintiff, relying on Zadarosni v. F. & W. Restauranteurs of Southeast, Inc., 192 A.D.2d 1051, 597 N.Y.S.2d 220.

Defendants Delia and Kenneth Brennan operate an establishment under the name of Deer Head Inn & Restaurant. The building in which the business is operated, and the property upon which the building is situated, are owned by two separate corporations, the principals of which are defendants. No lease for the property exists between either of the corporate entities and defendants. The corporate defendant defaulted and, no default having been taken within one year, the action against the corporate defendant has been abandoned.

The individual defendants contend that they are not liable for plaintiff's fall in the parking lot adjacent to the restaurant, since they did not maintain control or a possessory interest in the parking lot. Plaintiff argues that the individual defendants did control the parking lot and that the use of the parking lot constitutes a "special use" and benefit which imposes a duty of care on defendants.

"[L]iability for a dangerous or defective condition [must be] predicated upon ownership, occupancy, control or a special use of the property. The existence of one or more of these elements is sufficient to give rise to a duty to exercise reasonable care." (Turrisi v. Ponderosa, Inc., 179 A.D.2d 956, 957, 578 N.Y.S.2d 724).

Plaintiff established a prima facie case by demonstrating that defendants' use of the parking lot creates an issue of fact as to whether such use constitutes a "special use" of the parking lot sufficient to impose a duty of care. Although "special use," or "special benefit," has long been enunciated as a legal doctrine for imposition of liability, no definitive definition of the terms has been established. Most often, the special use or benefit is found when adjacent property owners make special use of a public sidewalk (Clifford v. Dam, 81 N.Y. 52; Nickelsburg v. City of New York, 263 A.D. 625, 34 N.Y.S.2d 1). Additionally, however, a special benefit or use has been established in cases involving (a) a grating in a sidewalk for a means of supplying light and air to a subsurface vault and basement, and as a means to deliver merchandise to the store (Olivia v. Gouze, 285 A.D. 762, 140 N.Y.S.2d 438, affd. 1 N.Y.2d 811, 153 N.Y.S.2d 71, 135 N.E.2d 602); (b) a shutoff pipe serving adjacent property (Smith v. City of Corning, 14 A.D.2d 27, 217 N.Y.S.2d 149 and cases cited therein); (c) an underground vault providing light and a housing for utility lines (O'Brien v. Christy, 142 Misc.2d 1069, 539 N.Y.S.2d 657); (d) holes excavated in a sidewalk and covered by grating (McCarthy v. City of Syracuse, 46 N.Y. 194; Irvine v. Wood, 51 N.Y. 224; Trustees of Vil. of Canandaigua v. Foster, 156 N.Y. 354, 50 N.E. 971; Gelof v. Morgenroth, 130 A.D. 17, 114 N.Y.S. 293; De Sessa v. City of White Plains, 30 Misc.2d 817, 219 N.Y.S.2d 190); (e) vaults and airshafts (Giaccotto v. New York City Transit Authority, 150 Misc.2d 164, 566 N.Y.S.2d 450); and (f) magazine racks placed in such a position as to direct a customer's path toward a...